IMPORTANT POINT
Conviction cannot be based only on the basis of recovery.

JUDGMENT

Accused-appellants have preferred these criminal appeals aggrieved by judgment and order dated 31.08.2018 passed by learned Additional Sessions Judge No.2, Behror, District Alwar in Sessions Case No.39/2012 (30/2012) (State of Rajasthan vs. Rajendra & Ors.), whereby, accused-appellants have been convicted for the offences under Sections 302 & 201 of Indian Penal Code (for short ‘I.P.C.’) and for offence under Section 302 I.P.C. each one has been sentenced to undergo life imprisonment and to pay fine of Rs.10,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months and for offence under Section 201 I.P.C., each one has been sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.5,000, in default of payment of fine to further undergo rigorous imprisonment for three months, both substantive sentences to run concurrently.

2. It is contended by counsel for the accused-appellants that as per First Information Report which was lodged after an inordinate delay on 03.05.2012, the incident took place on 14.04.2012. It is also contended that as per prosecution, there were two eyewitnesses namely; Kishori Lal (PW/1) and Ashok Kumar (PW/2) and they have turned hostile. It is further contended that except for the evidence of eye-witnesses, there is no evidence on record to sustain the judgment of conviction.

3. It is contended that as per the Forensic Science Laboratory Report (for short ‘FSL’) (Ex.P-42), the deceased-Virendra was intoxicated and the result of the FSL Report was found to be positive for the presence of Ethyl Alcohol. It is also contended that dead body of the deceased was recovered from an open well and as per statement of the doctor, it was not in a condition where someone could recognize the dead body. It is only on the basis of photographs that the dead body is said to have been recognized. It is further contended that as per post-mortem report which took place on 20.04.2012, the death took place about 4-5 days prior to the date of post-mortem on 15.04.2012 or 16.04.2012, whereas, as per the prosecution story, the incident took place on 14.04.2012. It is also contended that injuries which were found on the body of the deceased could have been caused due to falling in the well as has been admitted by Dr. Amit Awasthi (PW/28).

4. It is contended that F.I.R. was lodged merely with the intention to deprive the accused/appellant-Mamta of the property rights. It is also contended that the learned Trial Court has convicted the appellants on the basis of circumstantial evidence when none of the circumstances point towards guilt of the appellants.

5. Counsel for the accused-appellants have placed reliance on “Ramesh Bhai & Anr. vs. State of Rajasthan” (Criminal Appeal No.868-869/2004), decided by Hon’ble Apex Court on 24.04.2009.

6. Learned Additional Government Advocate appearing for the respondent-State has opposed these Criminal Appeals. He has supported the judgment of the learned Trial Court and has contended that learned Trial Court has given reasons for convicting the accused-appellants. It is also contended that on 14.04.2012, deceased-Virendra went to attend the marriage of his brother-in-law at Village Khaleta, District Rewari, Haryana and did not return from there. It is further contended that on the information given by the accused, they have identified the place of occurrence and at their behest, stick and towel which were used to commit the offence were recovered.

7. We have considered the contentions and have perused the evidence on record.

8. It is an admitted case that deceased went to his in-laws’ place at Village Khaleta, District Rewari, Haryana to attend the marriage of his brother-in-law. From perusal of the statement, it is revealed that Kishori Lal (PW/1) and Ashok Kumar (PW/2) were presented as eye-witnesses who have turned hostile. Dr. Shivnarayan (PW/3) and Dr. Amit Awasthi (PW/28), Members of the Medical Board, who have con